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Abstract: In a few weeks’ time, on 2 October, the world will mark the 156th anniversary of Mahatma Gandhi’s birth. Gandhi, whose political baptism in South Africa was followed by his remarkable stewardship of the freedom movement in India, imagined a decolonized polity that was indigenous in its values, practices, and governing systems. Yet, in the document that underpins the modern Indian state and its polity—the Constitution—that Indianness is missing. With some exceptions, this absence of indigeneity is the story of constitution-making in much of the Global South. What we have in these countries, in Gandhi’s words, is “English rule without the Englishman.” (replace “English” with appropriate colonial ruler).
In this lecture, I will try to understand why this is the case. In the first section of the talk (titled “Durban”), I will explore Gandhi’s core constitutional ideals of duties of citizens and community-based governance. These ideas, rooted in traditional Indic thought, were shaped by his time in the Phoenix Settlement outside Durban, and more generally over the duration of his eventful career of two decades as a lawyer and political activist in South Africa. In the second section (titled “Delhi”), I will cut to the making of the Indian Constitution in New Delhi between 1946 and 1950 and why these Gandhian ideas (and other ones too) failed to make it meaningfully into the document. I will argue that a combination of political exigencies and conceptual fuzziness were primarily responsible. To clear some of the fuzziness (or perhaps to add to it), I will, in conclusion offer some brief thoughts on what post-colonial thinking in law and constitution-making can look like.
Through this lecture, my intention is to interrogate the frameworks that underpin constitution-making in India, which may have some lessons more generally for the Global South. As non-Western lawyers and political theorists, our minds are often colonized by frameworks from another place and another time. Any search for indigeneity must begin with this realization, as it did for Gandhi.
Arghya Sengupta is a STIAS Fellow and the Research Director of the Vidhi Centre for Legal Policy, a think-tank in New Delhi. His research interests are in constitutional law and regulation of the digital economy, areas in which he has published widely both in peer-reviewed journals and the popular press. He has argued a number of landmark cases in the Supreme Court of India including the 9-judge Constitution Bench judgment in the Right to Privacy case and the 5-judge Constitution Bench judgment in the NJAC case on the legality of a particular method of appointing judges to the Supreme Court.
He is the author of three books: Independence and Accountability of the Indian Higher Judiciary (Cambridge, 2019), Hamīñ Ast? A Biography of Article 370 (co-authored- Navi Books, 2022) and the best-seller The Colonial Constitution (Juggernaut, 2023). He has most recently co-edited a series of essays titled The Working of the Indian Constitution, published by Routledge. Before his time at Vidhi, Dr. Sengupta was at the University of Oxford, where he completed his D.Phil. in Law and was a Lecturer in Administrative Law at Pembroke College.
